What has been described as the “classical liberal story” with regard to the rise of the private corporation and its “insulation from governmental regulation” often begins with the famous Dartmouth College case.Footnote 1 Against the increasing demands of Jeffersonian Republicans to regulate and limit the economic activity of chartered business corporations in the name of the public good, Dartmouth College recognized the private nature of such corporations and insisted that their “vested rights” were protected under the contracts clause of the Constitution.Footnote 2 In recognizing a charter as a contract that vested private rights against many forms of state regulation, Chief Justice Marshall's opinion paved the way for the private business corporation and helped usher in large-scale commercial development against Jeffersonian agrarianism.Footnote 3 As a leading history of the Supreme Court puts it, “there was a virtual explosion in the volume of business and the capital invested in business in the twenty years after Dartmouth College was handed down.”Footnote 4 In the hands of scholars of American political development, Dartmouth College’s seminal importance lies in the version of political economy it helped secure and foster: setting the foundation for the private corporation, the recognition of vested property rights, and an expansive understanding of the contracts clause—all of which set the stage for America's commercial development in the nineteenth century.Footnote 5
It is often forgotten that the very nature of Dartmouth College—whether, in fact, it was a private or public institution—was the central question in a larger constitutional struggle. An essential feature of this constitutional struggle regarded the relationship between church and state in the creation of the American Republic. To categorize Dartmouth as a “private” institution masks an important moment of American political development.Footnote 6 The distinction between “public” and “private” educational institutions does not accurately capture the American colleges in existence in the late eighteenth and early nineteenth centuries. On the contrary, the majority of such educational institutions are best characterized as “church–state” schools forged in an era when the church and state were not separated.Footnote 7 Created under a prior political order, church–state colleges such as Dartmouth provided sectarian education, favored their sect over others, and often had an educational monopoly in their respective states. These features put such colleges at odds with central ideas underlying the new political order.
The Dartmouth College case was part of a wider constitutional debate that included struggles over who controlled educational institutions—such as Harvard, Yale, and William & Mary—forged in a previous political order. Rethinking the Dartmouth College case opens a window onto this larger constitutional struggle and captures an important site of political development that laid the foundation for private educational institutions and allowed their religious affiliations to endure as part of private education independent of the state. Returning to the actual constitutional struggles also reveals that educational institutions such as Dartmouth were not so easily categorized as “private,” as the “public” dimensions of these colleges were pervasive. How to think of the church–state college in a new constitutional order, with quite different commitments, poses a story about clashing ideas and what changes were necessary to establish and maintain a new constitutional system. For leading political actors such as Thomas Jefferson and James Madison, reworking the relationship between civil government and established churches and the ideas behind this relationship, including the link between the civil state and sectarian colleges, was an essential constitutional development. Following Ken Kersch, this suggests an understanding of “constitutional development” as part of a historically rooted—and deeply conflicted—process of re-creating constitutional authority.Footnote 8 This also speaks to the importance of ideas in shaping political behavior: Political actors found existing educational institutions problematic precisely because of their ideas about political and theological authority. These actors sought to reshape educational institutions to align with their understandings of legitimate political authority.
This article begins with a description of the prevailing understanding of the Dartmouth College case and then offers an alternative understanding that seeks to recapture the essential constitutional conflict at issue. In sketching this understanding, I turn briefly to William Blackstone's Commentaries on the Laws of England, which provided the conceptual frame for categorizing corporations and thus helps situate the wider constitutional debate. To better understand the “reconstruction” of these institutions, I offer a historical sketch of the church–state college that was at the center of this effort. I then turn to struggles at Harvard, Yale, William & Mary, and Bowdoin to situate the Dartmouth College case as part of a long-standing political struggle for control over these institutions. Finally, I turn in detail to the Dartmouth College case, as it represents the conceptual culmination of these struggles by laying the foundation for the new constitutional order's distinction between public and private educational institutions. Yet, as we will see, the Dartmouth case speaks to a convoluted and conflicted politics, illustrating how these constitutional struggles resulted in layering a new constitutional order over an older order that partly persisted.Footnote 9
ACCOUNTS OF THE DARTMOUTH COLLEGE CASE IN AMERICAN POLITICAL DEVELOPMENT
Scholarship within American political and constitutional development tends to treat the Dartmouth College case as primarily about protecting the business corporation from state regulation. Its importance is most notable with regard to political economy and commercial development. Indeed, most accounts of the Dartmouth College case take it as a given that Dartmouth was a “private corporation” when, in fact, this was precisely what was being disputed in the case. In contrast, scholarship within American education has been much more likely to highlight the actual terms of the case, focusing on the nature of educational institutions in the early republic, the intricacies of the distinction between public and private educational institutions, and just how influential the Dartmouth case actually was with regard to shaping the development of educational institutions.Footnote 10 I seek to highlight the political and constitutional nature of the debate about Dartmouth College. In doing so, I seek to emphasize the constitutional nature of the conflict over educational institutions, a conflict that presents a nearly perfect microcosm of debates playing out between college and state in the new constitutional order and illuminates a “developmental” understanding of the relationship between church and state.
Emphasizing this facet of Dartmouth College is not to deny the importance of the case with regard to business corporations and commercial development. We might readily accept, as Jurgen Herbst argues, that John Marshall and Joseph Story used the case to “protect American business corporations under the contracts clause of the Constitution from arbitrary legislative amendments or repeals of their charters.”Footnote 11 And yet, even while this emphasis fits neatly with the conventional rendering of Dartmouth College within American political development, it should not obscure the fact that the actual case was in fact a conflict over the nature of educational institutions and their relations with the state—particularly with regard to the relationship between church and state. The case grew out of “a complex imbroglio of theology and politics” and did not seem a particularly promising case with regard to the contracts clause argument.Footnote 12 So, while Marshall and Story's opinions may lend themselves to the prevalent understanding, this understanding helped erase the actual conflict.
The Prevailing Account of Dartmouth College in Political Development
In the opening two decades of the nineteenth century, corporations chartered by the state came under pressure from Jeffersonians, who represented agrarian interests and smaller merchants and sought to regulate chartered corporations in the name of the public good. Against such efforts to regulate and, in some cases, reform corporate charters, these largely commercial enterprises insisted that their state-granted corporate charters gave them vested rights protected by the contracts clause of the Constitution, which insulated them from intrusive state regulation. Although Dartmouth College was a very different sort of chartered entity claiming the corporate form, the case became a cause célèbre when it arrived at the Supreme Court.Footnote 13 In his opinion for the court, Chief Justice Marshall found that a “private” corporate charter constituted a contract protected by the U.S. Constitution, insulating it from many types of state regulation.Footnote 14 Or, as Justice Story concluded after drawing on Blackstone, this “determines, in the most unequivocal manner, that the grant of a State is a contract within the clause of the constitution now in question, and that it implies a contract not to reassume the rights granted.”Footnote 15 The result, as Howard Gillman argues in The Constitution Besieged, embodied “Hamiltonian political economy into constitutional ideology.”Footnote 16 As Gillman describes the case, it protected “the joint stock corporation” to the benefit of commercial enterprises and the “urban mercantile-financial class” over and against “farmers and petty merchants” who saw such corporations (which were often granted a monopoly) as favoring large commercial and corporate “interests.”Footnote 17
In The People's Welfare, William Novak suggests this “classical liberal story” beings “with the Dartmouth College Case which initiated the great transformation of the business corporation from public into private entity.”Footnote 18 This protected the private business corporation from “retrospective state revision,” and this protection of vested property rights released “the corporate entrepreneur to compete and lure capital in a freer market-place.”Footnote 19 In accord with Gillman, and reflecting the prevailing account of Dartmouth College, Novak highlights the tension between corporate enterprises and their favored form of economic development on one hand, and the agrarian and smaller merchant interests that attempted to regulate them to preserve a different form of political economy on the other. Yet Novak suggests that the classical account is not quite right. As Novak notes, recognition of the corporate form did not insulate it from all forms of state regulation.Footnote 20 Story's concurring opinion in particular provided for state regulation, although, as we will see, this is less evident in a case regarding Bowdoin College's charter. Novak's larger point is certainly correct. Nonetheless, my point remains that scholars of American political and constitutional development largely fixate on the Dartmouth College case in regard to business corporations and governmental regulation of the economy.
This understanding is further borne out in a leading legal historian's insistence that the Dartmouth College case “is conventionally and correctly seen as a precedent that protected corporate charters from arbitrary state repeal or modification. As such, it marked another expansion of the contracts clause.”Footnote 21 This not only launched the contracts clause on “its remarkable career as the nineteenth century's chief textual inhibition on state regulatory power,” it made contract the paradigm of American law centered on “free individuals pursing individual gain.”Footnote 22 Similarly, a leading history of the Supreme Court, aimed at both a scholarly and a more popular audience, insists that what is most significant about Dartmouth College is its protection of “corporate charters from state regulation.”Footnote 23 Again, I do not deny the importance of the case in these terms, but I wish to highlight the inadequacy of such accounts. In these prevailing accounts, we find not a word about whether educational corporations were public or private. Nor do we get a sense of the constitutional issues with regard to the relationship between church, state, and college, which were the animating issues of the case.
Rethinking the Dartmouth College Case and Blackstone's Conceptual Frame
The essential issue in the Dartmouth College case was the nature of the institution. Most of the treatments in the prevailing accounts take it as a given that Dartmouth was a private corporation chartered by the state, partly because these accounts are focused on the case's trajectory with regard to the corporate form and not the actual conflict at issue. Yet, as Edward White notes, “the classification of Dartmouth College was a delicate and disputed matter, and that classification ended up being the heart of the case.”Footnote 24 Dartmouth College was founded in 1769 under a charter from the Crown in the then-colony of New Hampshire. Most leading educational historians, who disagree on much else, characterize Dartmouth as a public institution; though they also recognize that this is an imperfect description.Footnote 25 The catch is that Dartmouth was also a sectarian institution with a monopoly on higher education in New Hampshire. In the colonial political order, this was not problematic, as church and state were combined in all sorts of ways. Yet the link between college, colony, and church became the source of much tension in the years after Dartmouth's founding—the years that would ultimately foster the American Revolution and the Constitution of 1787. How did an institution forged in a previous political order fit within the new constitutional scheme? Did the revolution alter a charter bestowed by the Crown? The struggle over Dartmouth College was representative of constitutional struggles over educational institutions throughout the new republic and of a piece with struggles to “disestablish” churches. Yet how to characterize these institutions (Were they public, private, a mix of each, or not quite either?) was more illusive. Distinctions such as public and private “were in the process of becoming” and played out against a conceptual and legal framework inherited from Blackstone and the English college and university.Footnote 26
In Commentaries on the Laws of England, William Blackstone divided corporations (what he labeled lay corporations, rather than ecclesiastical corporations) for temporal purposes into “civil” and “eleemosynary,” and situated them in a sweeping analysis of the rights of persons.Footnote 27 Corporations were, accordingly, an “artificial person”—akin, Blackstone noted, to “bodies politic”—and a means of creating a sort of “legal immortality.” In examining the great variety of corporations—for “the advancement of religion, learning, and commerce”—Blackstone suggested that in common law, eleemosynary corporations “are such as are constituted for the perpetual distribution of the free alms, or bounty, of the founder of them to such persons as he has directed.”Footnote 28 Blackstone then suggested that “all colleges, both in our universities and out of them,” are of this sort, “which colleges are founded for two purposes; 1. For the promotion of piety and learning by proper regulations and ordinances. 2. For imparting assistance to the members of those bodies, in order to enable them to prosecute their devotion and studies with greater ease and assiduity.”Footnote 29 Interestingly, Blackstone “was inclined to think” of the “universities of Oxford and Cambridge” as civil rather than eleemosynary or ecclesiastical corporations. This was because these universities were composed of more laymen than clergy and because they were not created by the “private bounty” of the founder to be perpetually distributed. The colleges within the universities, however, were created by private donations (the bounty) of a founder and therefore should be categorized as eleemosynary corporations rather than civil corporations.
Under the common law, the colleges were incorporated in a manner so that the founder passed on his or her gift to support the college in perpetuity.Footnote 30 By the act of incorporation, the founder would pass on visitatorial rights to the trustees of the corporation. The trustees would then legally exercise the rights of the founder. Even if the state authorized the charter, the rights of visitation extended from the original gift; the charter was merely a legal means to help perpetuate the bounty of the founder—thus giving the founder's rights “immortality.” In drawing out this distinction, Blackstone drew on an opinion by Chief Justice Lord Holt of the King's Bench, which held that Exeter College of Oxford University was under the guidance of its visitors. The college was not subject to alteration by the university, as such rights were held by those with the visitatorial power; this power could not be altered outside of the original charter.Footnote 31
Daniel Webster, representing the Trustees of Dartmouth College against New Hampshire's efforts to reform Dartmouth College as Dartmouth University, would seize on this case and copiously cite Lord Holt to suggest that Dartmouth, though a lay corporation, was an eleemosynary corporation rather than a civil corporation and, therefore, not subject to alteration by the state. Webster would also insist that Dartmouth's corporate charter, given by the Crown in the old colonial order, should persist unaltered in the new constitutional order.Footnote 32 Yet the facts of Dartmouth's origins were disputed. So, too, was Blackstone's conceptual framework: It did not easily match the colonial American college, which was not equivalent to a college situated in a broader university like Oxford or Cambridge. This problem was only compounded with the creation of a new constitutional order, as figures like Jefferson and Madison attempted to bring the colonial college into line with refashioned political ideas and principles, insisting, against Daniel Webster's plea, that the organization and governance of the colleges needed to change.
THE AMERICAN CHURCH–STATE COLLEGE
It is useful to step back and offer a sketch of the American church–state college so that we might better understand the world actors like Jefferson and Madison inhabited and more readily comprehend the world they were trying to create. As Karen Orren and Stephen Skowronek remind us, given the historical character of politics, all attempts to construct political authority are really attempts to reconstruct such authority against a prior site. Building something new “usually means disturbing something else.”Footnote 33 By turning to the colleges in existence in the states, we can grasp the novelty of separating the civil and the theological and understand how disturbing the older relationship was an essential part of building the new constitutional order. The particular institutional arrangements in the various states were expressions of an earlier era, which reflected a profoundly different understanding of the relationship between civil and religious authority.Footnote 34 Nearly all of the colleges had a religious or sectarian affiliation that very often drove the curriculum of the college. At the same time, nearly all of the colleges received state support in one form or another. An early twentieth-century work, The Origin of American State Universities, reflects this blurred conceptualization. The work focuses on schools that would come to be labeled “private,” but illustrates how these early colleges were established and supported with “state” aid. Indeed, we might say that many of the colleges were “nearly like a state university as the colony was like a modern state.”Footnote 35
It was not odd, then, to have the president of Bowdoin College describe it as a “public institution” and remind his students that they had an obligation, coming from an institution “founded and endowed for the common good,” to use their talents “for the public good.”Footnote 36 This was not simply an insistence that students ought to look beyond their private lives to some common purpose; it was, rather, to recognize that the state, in conjunction with civil society, had created these institutions. Bowdoin received funds directly from the Massachusetts General Court (through a legislative act to maintain educational institutions, including Harvard, Williams, and, in time, Amherst), which kept it solvent. Yale, Columbia, Dartmouth, and William & Mary very likely would not have made it without similar state funding in the colonial period and after. Venerable Harvard was no different. Indeed, while its claim to be the oldest college in the country is undisputed, it would be very difficult to consider Harvard a “private” university as we now use the term until well into the nineteenth century.Footnote 37 It was given land and money from the General Court from its inception, and the president of Harvard College was often paid directly by the General Court.Footnote 38 This is reflective of the “public” or perhaps “civil” nature of such colleges. It is also fair to say that the primary mission of these early colleges, and why they were supported by the colonies, was theological. This included the advancement of general learning, but even this goal was often put in theological terms. As Cotton Mather said of Harvard, “Our fathers saw that without a College to train an able and learned ministry, the church in New England must have been less than a business of one age, and soon have come to nothing.”Footnote 39 Mather helped to establish Yale College as a rival to Harvard when the theological and doctrinal purity of Harvard came into doubt.
As Samuel Eliot Morison writes, “an essential ingredient of this early liberal education was the religious spirit of Harvard. Our founders brought over this medieval Christian tradition undiluted.”Footnote 40 Studies were undertaken for a “greater knowledge of God,” and the acquisition of knowledge must lay “Christe in the bottome, as the only foundation.”Footnote 41 Yale was established by the church–state of Connecticut to provide a more orthodox education—“upholding and propagating of the Christian protestant Religion by a succession of Learned and Orthodox men”—that, in the view of Mather and others, Harvard had fallen away from. This was particularly so with regard to orthodox training for ministers. As President Thomas Clap put it, “The great design of founding this school was to Educate Ministers in our Own Way.”Footnote 42 Though brought into being after Harvard and before Yale, the College of William & Mary had a similar foundation. The General Assembly of Virginia had asked for a royal charter to endow an Anglican college: “to the end that the Church of Virginia may be furnished with a seminary of ministers of the gospel, and that the youth may be piously educated in good letters and manners, and that the Christian faith may be propagated amongst the Western Indians, to the glory of Almighty God.”Footnote 43 In 1754, Columbia was similarly established by the colony of New York as an Anglican college, though attendance was not limited by denomination.Footnote 44
Not all colonial colleges were funded and connected with the state. Princeton, Rutgers, and Brown do not seem to have gotten any significant financial assistance from their respective colonies. But theology and religion remained at the heart of these institutions. This was particularly true of Princeton, which was a New Light Presbyterian school, and Rutgers, which was Dutch Reformed.Footnote 45 Brown's charter insisted on religious liberty and a separation of church and state, though eight of twelve board members were required to be Baptists (Baptists had established the college). In a sense, this reflected the state interests of Rhode Island, which, unlike the earlier New England colonies, was established on the principle of religious liberty and the separation of state from the church. This was, after all, a colony founded by Roger Williams, who had been forced out of the Massachusetts Bay Colony by its theocratic leaders. According to Brown's charter, “sectarian differences of opinion, shall not make any Part of the Public and Classical Instruction,” though it also insisted that such controversies “may be studied freely.” Nevertheless, it would be a mistake to understand these institutions as essentially early versions of the institutions they would in time become. With Brown we certainly see early principles of religious toleration and academic freedom against theological orthodoxy. With Princeton and Rutgers we also see, far more than with Harvard and Yale, private sectarian colleges. Interestingly, these three examples of proto private colleges grew in states with weak religious establishments, or no establishment altogether.Footnote 46
With the American Revolution came a deeper debate about the legitimacy of state establishments. Underlying this debate was an insistence on constitutional principles requiring religious liberty and toleration, which were seen to be inconsistent with forced taxation to support established churches or state-supported educational institutions that enjoyed a monopoly and favored a particular sect. Constitutional principles would require, as Noah Webster argued, transformations in the states, because “establishment” was a “mild” term for tyranny. Webster insisted that “badges of bigotry” and “abominable prejudices” that persisted in some of the states, including religious tests for offices or subscribing to “certain articles of faith,” would have to be transformed as part of constitutional development.Footnote 47
Part of this debate involved the question of whether publically supported educational institutions needed to be civil (and secular) institutions rather than institutions of a religious character. The sectarian affiliation of most colleges, and precisely how that fit with the logic of church and state in the new constitutional order, was a long-standing debate that would play out for much of the nineteenth century. As governor of Virginia in 1779, and in conjunction with his “Bill for a More General Diffusion of Knowledge,” Jefferson proposed that the state take over William & Mary as part of the general system of education. Jefferson argued that Virginia had established and supported the institution and it ought to be brought into line with “revolutionary principles,” which meant breaking its ties to the Anglican establishment (or Episcopalian as it would become in the wake of the revolution).Footnote 48 Jefferson was not successful in getting a series of bills to this effect passed, but in his capacity as a governor—and as one of the visitors of William & Mary College—he made alterations to the sectarian nature of the college, which most visibly included abolishing its professorship of divinity. As the president of William & Mary complained, “the Professorship of Divinity is also abolished. It was formerly instituted for the purpose of the Church of England, which was here established, but it is now thought that Establishments in Favor of any particular Sect are incompatible with the Freedom of a Republic, and therefore, the Professorship is entirely dropped.”Footnote 49
Yet even with the removal of a professor of theology, Jefferson thought William & Mary's theological commitments did not serve the educational ambitions and needs of the new American polity. As Jefferson wrote to Joseph Cabell about the college, visitors were still required to be members of the Church of England, professors to subscribe to the thirty-nine Articles of Faith, and students to learn the catechism of the church. All of this was at odds with the commitments of the new constitutional order.Footnote 50
The crucial task was breaking the link between church and college. The argument for forging or re-creating these institutions was two-fold: First, many of these institutions—William & Mary, Harvard, Yale, and Dartmouth—were public institutions. Second, insofar as they were public institutions, they could not be sectarian institutions. Enlightenment thinkers like Jefferson drew support from religious leaders like Isaac Backus in their efforts. In his A Church History of New England, Backus lamented “even in 1780, no ministers but Congregational ministers were allowed to be overseers of the university at Cambridge, by the Massachusetts constitution of government.”Footnote 51 A Baptist minister, Backus was writing from a different philosophical perspective than Jefferson, but his point was the same in essentials: The state should not be legally supporting an exclusively sectarian institution of education; nor could such an institution serve the purposes of the civil government and the citizens of the new polity.Footnote 52
The root of the solution, for Backus and Jefferson, was “the great separation”—the creation of the “civil” sphere as distinct and separate from “religious” authority. This separation did not necessarily address, let me add, whether the civil state might aid religious institutions, which is a question of modern constitutional law that fits within this larger institutional and conceptual restructuring. The point is that narrow sectarian institutions could not be the central educational institutions supported by the civil state.Footnote 53 Jefferson's complaint against William & Mary and Backus's against Harvard were precisely that these were discriminatory sectarian institutions supported by the state. They combined civil and sectarian things in a manner that needed to be untangled. The Dartmouth College case was at the center of reconstituting a church–state school to be a public school, which meant a school devoid of sectarian commitments.
EDUCATIONAL INSTITUTIONS AND CONSTITUTIONAL DEVELOPMENT
Given the close connection between colony and college, the question of who was the founder of a college—and who, then, could exercise control over the college, including “visitatorial” rights in Blackstone's framework—was subject to much debate. Harvard, Yale, and William & Mary were subject to this debate in the latter half of the eighteenth century and into the early nineteenth.Footnote 54 The conflicts were over 1) whether the colonial and then state legislatures had control over the institutions and 2) what was the religious nature of the colleges. A pamphlet from 1742, arguing that the General Court of the Massachusetts Bay Colony founded Harvard College and could therefore reform the college according to public need, gives the flavor of such debates.Footnote 55 As Nathan Prince argued in the Constitution and Government of Harvard-College, “That the general court of said colony built it and named it and ordered where it should be built and what kind of building it should be. And that all the powers which any persons ever had from the beginning, or now have over the said college were originally derived to them from the General Court of the colony.”Footnote 56 Prince insisted that Harvard was a public college brought into being by the legislature. In doing so, he denied that the Board of Overseers exercised the rights of “visitation”—the right to control and guide the college and corporate charter—independently of the General Court. Citing Chief Justice Holt, who would be drawn on by Daniel Webster in the Dartmouth College case, Prince insisted that the General Court was the founder of the college and, as such, might need to interpose and save the college.Footnote 57
Prince himself was struggling with the Harvard administration. He was dismissed as a lecturer for intemperance, which may have had its origins in his being overlooked for the Hollis Professorship of Mathematics and Natural Philosophy, which went to John Winthrop. (Winthrop was the great-great-grandson of John Winthrop, founder of the Massachusetts Bay Colony, and he created a stir by attempting to explain the Lisbon earthquake of 1755 by way of science, not religion, which should give us some flavor of the religious nature of such institutions.) Yet putting aside Prince's personal motives, his insistence that the General Court was the founder of Harvard College was later endorsed by no less a figure than Senator Daniel Webster, who would argue the Dartmouth College case. Writing in a report for the Commonwealth of Massachusetts in 1821 on the “Constitutional Rights and Privileges of Harvard College,” Webster insisted, “The Government of the Colony was the Founder of this Institution; not in consequence of having granted the Charter, but in consequence of having made the first endowment.”Footnote 58 Webster agreed with Prince that it was the General Court who exercised the powers of visitation and could thus amend the governance of Harvard by legislative act.Footnote 59
In the 1760s this became an issue at Yale when the Assembly of Connecticut sent “a commission of visitation to enquire into the affairs and abuses of Yale College” on the assumption that it had founded the college.Footnote 60 At issue were the rights of visitation, which, it was argued, flowed from the founder. If the assembly was the founder of the college, it exercised the rights of visitation. President Thomas Clap disputed that the assembly was the founder. Clap went so far as to document the history of the college in The Annals or History of Yale-College in New-Haven. Turning to Lord Coke, Clap argued that the founder quoad Dotamtionem—“whose Heirs or Succesorrs the law gives a Right of Visitation”—is “who makes the FIRST DONATION.”Footnote 61 According to Clap's history, the founder of the college, by making the first donation, was not the General Assembly of Connecticut. The assembly had in fact chartered the college in 1701 and included as part of its charter a donation of “Sixty Pounds Sterling” to be paid annually out of the public treasury. Yet Clap's history placed the actual founding of the college a bit earlier. Two years before the charter, a group of ministers founded the college “by making a large and formal Donation of Books.” Thus Clap insisted that the college existed from the ministers’ gift, which was prior to the colonial charter. And those who made the first donation—the ministers in this case—possessed the rights of visitation, which they then passed on to the trustees of the corporation.
The eminent historian George Pierson has brought Clap's history into serious doubt. Indeed, as Pierson notes, prior to his struggle to retain the presidency of Yale, Clap had himself insisted that the “legislature had founded the institution!”Footnote 62 As Pierson argues, Clap's Forty Folios, which seek to document the founding and history of the college, are not reliable. And yet, in 1745, prior to his disputes with students and the assembly, Clap did manage to get the legislature to secure the college by “An Act for the more full and compleat Establishment of YALE COLLEGE.” And in this act, Clap had shrewdly gotten it into print and into the Yale charter—its first real charter according to Pierson—that “the ministers had been the founders.”Footnote 63 Clap's history is doubtful; and his insistence that the ministers as “first donor” were “the founder” with visitatorial rights under common law is also highly suspect.
A political pamphlet from 1784, written by Samuel Dana, a Yale graduate who was a member of the assembly and would go on to be a member of the U.S. House of Representatives and a Federalist, insisted that Clap's history was fraudulent and his logic faulty. The founder of the college, Dana argued, was the assembly, which had “a right to inspect, regulate and reform the corporation of Yale-College.”Footnote 64 Dana insisted that Clap's efforts attempted to deny the assembly the right to reform what its own hand had created.Footnote 65 And while Dana insisted that the assembly had erected a college for the “mutual emolument of church and state,” this was open to revision by the legislature. Indeed, Dana rejected Blackstone's categorization of corporate bodies that bestowed the rights of visitation as inapplicable to Yale. As Yale was created by the General Assembly, it was not subject to a board of visitors, as a legislative body is not subject to such limitations.Footnote 66 Yale thus never enjoyed the corporate form that President Clap insisted on. Rather, it was a civil or public corporation created by the legislative body and, therefore, subject to alteration by that body.Footnote 67 And, Dana argued, the assembly had, in the years since Yale's founding, made various changes to the college.Footnote 68 Recognizing the need of the assembly to alter its own creation to suit the current needs of the polity, Dana's argument is also suggestive of separating civil government from the ministers in governing the college: “Surely it must carry a most debasing idea of a civil government, elected by the free suffrages of an independent people, that none of its members can be thought worthy to take any part in the administration of the government of the college, which themselves have erected and in so generous a manner endowed—an idea contrary to our first notions of right.”Footnote 69
As we can see from Dana's pamphlet, the question of public control became more pronounced after the revolution and with the forging of new state constitutions (in many instances) and eventually the federal Constitution of 1787. Did this constitutional change alter the terms of the existing colleges, which were chartered by the colony and often by the Crown? Did colonial charter and financial support render the colleges subject to public control by the state? In the case of William & Mary, Jefferson argued that as the college was formally chartered by the Crown and was formally connected with the established church in Virginia during the colonial era, in the wake of the revolution it should properly become a nonsectarian state institution subject to state control. According to Jefferson, this was constitutionally required. While Jefferson was able to get the visitors of the college to abolish the professorship of divinity, his larger scheme of educational reform, which included making William & Mary a nonsectarian public institution, was unsuccessful. Yet the abolishment of the professorship in divinity raised questions about the nature of the college's charter: Was William & Mary a private eleemosynary corporation or a public corporation established by the government?Footnote 70 Representing the visitors (including Jefferson), the future chief justice John Marshall argued that it was a private eleemosynary corporation subject only to the control of the board of visitors, who were beholden to the charter. The Virginia Court of Appeals accepted Marshall's argument. Ironically, this would make it more difficult for Jefferson to assert direct state control over what he deemed a public institution.
After the election of 1800, which Jefferson called the “revolution of 1800,” Jeffersonians would attempt to assert more direct state control over what they deemed to be public institutions. Federalists were often inclined to support such institutions and at times brought together church and state in a combination of Federalist politics and Calvinist preaching. The Federalists’ reluctance to see these educational institutions guided by the states may well have been driven by the fact that Jeffersonians often controlled these state legislatures.Footnote 71 As George Marsden describes it, “an all out war was going on over whether American higher education would follow the Jeffersonian revolutionary model” or whether it would “be controlled by more traditional denominational interests.”Footnote 72 Yet this involved a complex and layered politics. Jeffersonian-Republicans included those who thought that the revolution required a separation between church and state, which would allow religious institutions to flourish without state support, as well as those who saw state support of sectarian educational institutions as essential to maintaining this new republicanism. Federalists often endorsed state support of sectarian colleges, but came to object to state control of what they came to describe as private institutions. At the heart of this complex politics was the difficult business of drawing a boundary between public and private institutions given shifts in ideas about legitimate political authority.
MAPPING DARTMOUTH COLLEGE IN POLITICAL DEVELOPMENT
The Dartmouth College case grew out of these convoluted politics. Before detailing the complexities, let me restate the essential issue in simple terms. The state of New Hampshire claimed that Dartmouth was a publicly chartered institution, had been founded as such, and was therefore subject to governance by the state legislature. The trustees of the college argued that it was, by grant of its original charter, an eleemosynary corporation—that is, a private charity that passed on the “vested rights” of the founder to the board of trustees. Any interference with the governance of the college by the state was, then, a violation of contract as protected by both the New Hampshire Constitution and the U.S. Constitution. The case would wind its way from the Superior Court of New Hampshire to the U.S. Supreme Court on these issues. Yet the background details are essential to placing Dartmouth College within American political development, as the case was, in many ways, the culmination of decades of constitutional struggle over the inheritance of the colonial college that I sketched above.
The man at the center of this dispute, William Plumer, reflected a curious blend of complex partisan politics and a desire to establish educational institutions as beyond partisan politics and religious sectarianism. As governor of New Hampshire, Plumer would make reforming Dartmouth College central to his administration. A Jeffersonian-Republican, Plumber was both a former governor and a former Federalist, as well as a Baptist preacher. He broke with the Federalists partly over what he perceived as a merger of Congregational preaching and Federalist politics in the Jeffersonian era. (Plumer, though, would cast the lone electoral vote against James Monroe and for his good friend John Quincy Adams in the presidential election of 1820.) In the wake of the Revolution of 1776, Plumer helped frame New Hampshire's Constitution of 1792—which it kept until 1876, with only one change—so much so that it was know as “Plumer's Constitution.”Footnote 73 Plumer's Constitution abolished religious tests for officeholders (who had previously been required to be “of the Protestant religion”), provided for the privilege of worshipping God in a manner agreeable to the dictates of conscience, and prohibited the legislature from compelling church attendance or paying taxes for the building of churches or the support of teachers of religion.Footnote 74 And, Plumer had narrowly helped defeat, in the Constitution of 1791, a provision that provided that any person “convicted of speaking disrespectfully of any part of the Bible should have his tongue bored through with hot iron.”Footnote 75
Running for governor in 1816 (he had been replaced by a Federalist in 1813), he entered an ongoing dispute between the president of Dartmouth and its trustees over who governed the institution. Interestingly, the president of Dartmouth had asked for legislative interference in his dispute with the trustees, thinking that the legislature had control over the college. At first, the trustees sought to work with the legislature and did not object to “connecting the government of the state with that of the College.”Footnote 76 Yet, what had begun as a dispute between the president and the trustees soon became a much wider debate about the nature of the college. Plumer characterized the issues at Dartmouth as part of a wider argument for disestablishment, rejecting tax support for the Congregational church, and aiding passage of the Act of Toleration of 1819, which placed all sects on equal footing.Footnote 77 In a similar fashion, Plumer insisted that Dartmouth College, as a publically supported institution, could not be a Congregational institution. Plumer “was a leading spokesman for the Republican principle that an effective government demanded an educated citizenry.”Footnote 78 Yet to make such provisions in a manner consistent with republican government, Plumer insisted that the vestiges of Dartmouth's monarchical organization—including, in particular, its religious affiliation—would need to be reorganized. The college itself was deeply divided over the presidency and religious support for the institution. And, while the initial argument was between a Federalist president and a Federalist board of trustees, it came to be understood by the public as a dispute about the proper relationship between religion and civil government.Footnote 79
Plumer sought to sort out this conflict by rechartering Dartmouth College as Dartmouth University, which included creating a new board of governors, to bring Dartmouth more effectively under public control and into line with constitutional principles. This also meant breaking its religious affiliation (which was a source of conflict even among supporters of the college, including Federalist supporters) and providing that no college officer or student would be deprived of “honors, privileges, or benefits” on “account of his religious creed or belief.”Footnote 80 To Plumer, the college was already a public institution as it was founded by the colony and funded by the colony (and then state) to serve the public. Yet its Congregational “establishment” meant that it was organized in a fashion that pulled against its essential task.Footnote 81 Rechartering the college was “a way of making the College responsive to public needs and freeing it from sectarian domination.”Footnote 82 If Plumer was at this time a Democratic Republican, he viewed this alteration of Dartmouth as beyond partisan politics and part of the new constitutional order (Federalists in New Hampshire would split over the issue). His appointments to the new board give credence to this claim as they included men of both political parties and of varying religious sects. Moreover, one of the acts amending the charter provided that “perfect freedom of religious opinions should be enjoyed by all the students and officers of the University.”Footnote 83 Jefferson wrote to Plumer in praise of his republican efforts: “The idea that institutions established for the use of the nation cannot be touched nor modified, even to make them answer their end, because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but it is most absurd against the nation itself.”Footnote 84
If the trustees of the college were deeply divided over the presidency and matters of faith, they became united in insisting that the college was not subject to government control or recharter. At issue, first, was who founded the college and, second, once founded, what was the reach of state power regarding the college? Against the acts of the New Hampshire legislature, the trustees insisted the college was chartered as a private institution, that the original charter gave the trustees control of the college, and that the original charter was protected as a contract under both the New Hampshire Constitution and the U.S. Constitution. Founded by the Reverend Eleazer Wheelock as a private charity, after the founder's death, under the terms of endowment, the rights of visitation over the corporation devolved to the trustees. Dartmouth College was thus a private eleemosynary corporation beyond the reach of the state. This was so, even if the College had received colonial and state support from both Vermont and New Hampshire (which it had). Such financial support, the college argued, was the equivalent of state support for a private charity. Given all of this, the college could not be rechartered, or its governance and property altered, without the permission of the trustees, who were bound in fiduciary trust by the intent of the original founder.Footnote 85
In response, the state insisted that Dartmouth College was a publicly chartered institution. As such, it was subject to revision and reform by the state. Indeed, the state insisted that Dartmouth's original charter established it as a public body subject to reform by parliamentary authority. While the revolution dissolved the connection with the Crown, it did not render the charter a private eleemosynary corporation. Here, in fact, the state disputed that the Reverend Wheelock was so easily seen as the founder. To be sure, Wheelock had helped establish a school for the education of Native Americans and solicited contributions on its behalf sometime around 1754—years before Dartmouth's charter. This school, the state argued, was independent of the college. When the college was founded, several years later, it was removed from Wheelock's estate. It might make sense, then, to treat the charity established for the assistance (and religious conversion) of Native Americans as a “private” eleemosynary corporation distributing the funds raised on its behalf. This was not true, however, of the college, which was “but a public institution; subject to be modified, altered, and regulated, by the supreme power of the state.”Footnote 86
Even if it were taken to be a “private” corporation inherited from the colonial order, the subsequent constitution of New Hampshire did not make Dartmouth's charter immutable. “On the contrary, the constitution of the State admonishes the legislature of the duty of encouraging science and literature, and thus seems to suppose its power of control over the scientific and literary institutions of the State.” This would only confirm the republican principle and the right of self-government to “adapt the education of the youth of the country to the change in its political institutions.”Footnote 87 Thus, even if Dartmouth were found to be a private corporation, it was nevertheless subject to state control: “A charter of incorporation implied an agreement that the charter might be altered for the public good.”Footnote 88
The Superior Court, largely made up of Republican appointees, found that Dartmouth was a public corporation and therefore its trustees were subject to state control. In an opinion by the chief justice, the Superior Court rejected the common law distinction between civil and eleemosynary corporations. In its place, the court “proposed a new division into public and private,” which would be determined by “the objects for which corporations were created.”Footnote 89 In examining the history and charter of Dartmouth, the court held that it was founded to spread Christianity and educate the public. These were public purposes, and the court found Dartmouth to be a public corporation whereby the trustees held offices of public trust. There were, then, no private rights of “visitation.” Furthermore, as a public corporation, the college's charter did not fall under the contracts clause of the U.S. Constitution (the court found it would have if the college had, in fact, been a private corporation).Footnote 90 Though written by a Republican chief justice, the staunch Federalist Chancellor Kent found the opinion persuasive.Footnote 91 A leading jurist of his day, Kent was intrigued by the case, and the Superior Court's opinion moved him to “assume the fact that Dartmouth College was a public establishment for purposes of a general nature.”Footnote 92 Kent came to reconsider his opinion. At the heart of Kent's reconsideration was Senator Daniel Webster's argument before the Supreme Court of the United States.
(RE)CONSTITUTING DARTMOUTH AS A PRIVATE COLLEGE
Appearing before the Supreme Court, Webster argued that Dartmouth College was a charity founded by Dr. Wheelock and thus was an eleemosynary corporation. The charter authorized Wheelock to donate his own funds to, and collect funds on behalf of, the institution. It also gave him the right to appoint trustees who, under the terms of the charter, would constitute the corporation of Dartmouth College. The corporation would then exercise the rights of the founder. The acts of the New Hampshire legislature at issue enlarged the board of trustees, which gave the state control of the corporation rather than the prior trustees, and then gave the state power to direct the college and its property. This, Webster contended, was in violation of the charter, and the charter was a contract protected by the U.S. Constitution. At the crux of Webster's argument was a distinction between an institution that served public purposes, as the college did, and one subject to direct public control.
Drawing on Blackstone's conceptual framework dividing lay corporations into civil and eleemosynary corporations, Webster argued that Dartmouth was not a civil corporation but an eleemosynary corporation. “It is a private charity, originally funded and endowed by an individual, with a charter obtained for it at his request, for the better administration of his charity.” As such, Webster insisted, the founder willed the rights of visitation to the trustees. Under the terms of the charter, these rights could not be taken back by the state. Indeed, drawing on Lord Mansfield, Webster argued, “corporations of the universities are lay corporations; and that the crown cannot take away from them any rights that have been formerly subsisting in them under old charters or prescriptive uses.” The Crown itself was bound by the original contract, and even if New Hampshire inherited the power that once belonged to the Crown, the revolution did not alter anything within the charter.Footnote 93 Moreover, Webster insisted, it did not matter that the state donated to the charity and used the corporation to its advantage. He argued that all “eleemosynary corporations are private bodies,” and as private bodies hold the right to their property and governance even if such institutions are aimed, under private direction, at public benefit.
Following Blackstone and other luminaries of the common law, Webster insisted that the trustees of Dartmouth College exercised visitatorial rights under the charter. As Webster put it, “the trustees possessed vested liberties, privileges, and immunities, under this charter; and that such liberties, privileges, and immunities, being once lawfully obtained and vested, are as inviolable as any vested rights of property whatever. Rights to do certain acts, such, for instance, as the visitation and superintendence of a college, and the appointment of its officers, may surely be vested rights, to all legal intents, as completely as the right to possess property.”Footnote 94 Webster's argument swept much wider than the contracts clause. Relying on the vary nature of the common law, Webster insisted that the legislative acts at issue altered the governance of the college and were thus the equivalent of a taking, a violation of vested rights and fundamental principles that necessarily limited legislative power.Footnote 95
The Supreme Court, in an opinion by Chief Justice Marshall, accepted Webster's classification of Dartmouth as a private corporation. Marshall, characteristically, put the two essential questions forward: Is the charter a contract protected by the U.S. Constitution? If so, was the contract impaired by New Hampshire's legislative acts? In answering the first question, Marshall noted that it was the crux of the case—that is, what was the “true construction of the charter of 1769.” This was the point on “which the cause essentially depends.” If the charter were an incorporation of civil power, then Dartmouth would be a public corporation subject to legislative judgment and not protected by the contracts clause. If, on the other hand, “this be a private eleemosynary institution” for “objects unconnected with government,” then that was a very different case.Footnote 96 In a brief review, Marshall found the charter to be a private eleemosynary corporation founded by Dr. Wheelock.Footnote 97 Marshall did acknowledge the governmental interest in education, but insisted education was not in the hands of the government alone. Nor could we consider all who were engaged in education as public officials. Dartmouth was established as a private charity, to be self-perpetuating, and to use its property for “the objects of its creation.” In applying to the Crown for a charter, a contract was created between the “donors, the trustees, and the crown,” which was protected by the Constitution.Footnote 98 When the New Hampshire laws altered the terms of the charter, “the will of the State is substituted for the will of the donors, in every essential operation of the college,”Footnote 99 violating the contract.
Marshall's somewhat cursory history of the college, particularly his insistence that the funds supporting the college were private, could certainly be subject to serious dispute. Yet his categorization of public and private fit with the conceptual framework being pushed by those who wanted to secure Dartmouth as a public institution. Marshall did invoke the phrase “eleemosynary,” but he did not rest his opinion on Blackstone, the common law, or say anything about “visitatorial” rights. It was left to Justice Joseph Story, who wrote a lengthy concurring opinion, to take up the particulars of Webster's argument and delve into the intricate details of the common law. Drawing on Blackstone, Story noted that “although the king, by grant of the charter, is in some sense the founder of all eleemosynary corporations, because without his grant they cannot exist; yet the patron or endower is the perficient founder, to whom belongs, as of right, all the powers and privilege, which have been described.”Footnote 100 And Story insisted, “neither the king, nor the province of New Hampshire was the founder.”Footnote 101 The revolution did not change this. As Blackstone noted, while the body politic may dissolve itself, the rights of the corporation then revert to the founder's heirs.Footnote 102 In this case, that would be the trustees of Dartmouth College. Story's opinion, like Webster's argument, rested more on the fact that this was an impermissible taking and a violation of general principles that bound legislatures than it did on the contracts clause.Footnote 103 And while Story, like Marshall, acknowledged the “public” nature of the educational institution, this did not make the corporation itself public.Footnote 104
DARTMOUTH COLLEGE IN POLITICAL TIME
The insistence that the public aims of a corporation do not make the corporation itself a public entity was profoundly influential; it turned charters granted by the state for public purposes into private business corporations, often immune from state regulation, as the prevailing emphasis on the Dartmouth College case suggests. Yet one of the earliest notices of the case, from the Boston Columbian Centinel, applauded the opinion for recognizing the inviolability of the charters of “literary and charitable institutions.”Footnote 105 This was an opinion that must give “the utmost satisfaction to every friend of Science and Learning in the United States.”Footnote 106 A more extensive analysis was offered in an essay in the North American Review in 1820—reviewing the Dartmouth College case and the recent volume of Wheaton's Reports—that noted the definition of corporation would apply to “banks, bridges, turnpikes, canals, &” as they are properly considered “private civil corporations.”Footnote 107 Attributed to Warren Dutton, the essay reads as a paean to Marshall, Story, and Webster and rehearses their various arguments in asserting that Dartmouth could only be understood as a private corporation. Yet the essay's focus was largely on the educational aspects of the Dartmouth College case, though, as a review of Wheaton's Reports, it also had high praise for the virtues of the Supreme Court and its crucial place within the constitutional scheme in a number of other cases. Dutton insisted that the Dartmouth case “excited a deeper interest in the public mind” than other cases and rendered a great service “to the cause of learning in this country.”Footnote 108 Dutton's essay then situated the Dartmouth decision against earlier struggles with regard to Yale. Indeed, President Clap of Yale, whose dubious history of the founding of Yale College I recounted above, is singled out for tribute as a man “who alone, ably and successfully defended the rights of his college against a powerful party in the legislature of the state, aided by the most eminent lawyers of their time.”Footnote 109 It is with some irony that Dutton points the finger at Jared Ingersoll—a graduate of Yale, signer of the Constitution, and Federalist—as one of the lawyers representing the Connecticut Assembly against President Clap in arguing that the state founded Yale. As we saw with Samuel Dana, this suggests that in the revolutionary era, the public dimensions of such colleges were acknowledged by those who would become Federalists as well as by those who would become Jeffersonians. Similarly, during this earlier period, it was a diverse group of figures that found the sectarian nature of these institutions troublesome.
In the same issue of the North American Review, in fact in the subsequent essay, the editor, Edward Everett, future President of Harvard, reviewed the Report of the Commissioners for the University of Virginia and highlighted the importance of public funding and the fact that the university did not have a sectarian affiliation or provide for theological instruction. As Madison put it in a letter to Jefferson regarding the organization and curriculum at the University of Virginia, “there seems to be no alternative but between a public University without a theological professorship, and sectarian Seminaries without a University.”Footnote 110 This separation, embraced so strongly by Madison and Jefferson and central to the University of Virginia, was, Everett insisted, “probably the first instance, in the world, of a university” that made no provision for theology. And it did so on the basis of “the principles of our constitution.” Everett was uncertain of the experiment, but bemoaned “a sectarian spirit” that harmed society and felt “as sensibly as the framers of the report, the sort of evil resulting to our theological schools,” which justified the experiment.Footnote 111 Moreover, Everett praised “state patronage” of education and worried that America was relying on private charity to do what the states and nation ought to do.Footnote 112 The University of Virginia was founded as a public university with no sectarian connection. At the same time, however, earlier colleges would be classified as “private” corporations that could retain sectarian education independent of the state.
Justice Story would insist on this distinction, sitting as a federal circuit judge, in Allen v. McKean, which raised questions with regard to the chartering and founding of Bowdoin College. And here, in fact, the two different foci of the Dartmouth College case come together in some respects. While this was a case dealing with educational institutions, it also seems to be an instance of Story bending over backward to protect so-called private corporate rights. Allen stands out in this regard because, even accepting the general logic of Dartmouth College, it was conceded that the Commonwealth of Massachusetts was the founder of Bowdoin. And yet, despite the commonwealth being the founder, Story found that Bowdoin was a private eleemosynary institution generally beyond the reach of the legislature that founded it. Thus, while William Novak is right to note that Story's concurring opinion in Dartmouth College “famously suggested that states could escape contract clause limitations simply by reserving the right to amend or repeal in every corporate charter,” this had much less purchase in practice.Footnote 113
The nature of the charter became an issue when the legislature of Maine attempted to remove the president of Bowdoin, William Allen (who had actually been appointed the president of Dartmouth University when the New Hampshire legislature attempted to alter Dartmouth College). Finding himself on the other side this time around, Allen sued the treasurer of the college for his salary, insisting the legislature of Maine did not have the power to remove him. (The treasurer of Bowdoin was actually one McKeen, not McKean, but his name was misspelled by the court report, the future senator of Massachusetts, Charles Sumner.) The chartering of a college, Story argued, did not make it a public corporation. It was, to be sure, a public institution in its aims and benefits, but it was a private corporation in terms of its governance and control. This was so, according to Story, even when the state was the “founder.” In founding Bowdoin, the Commonwealth of Massachusetts had then turned over its governance—and the visitatorial power—to a board of trustees and overseers. Story insisted that this limited the commonwealth's power, despite the fact that Section 16 of Bowdoin's charter provided “that the legislature of this commonwealth may grant any further powers to, or alter, limit, annul, or restrain any of the powers by this act vested in the said corporation, as shall be judged necessary to promote the best interests of the said college.”Footnote 114 Story argued that this provision allowed the legislature to make some alterations to the powers of the corporation, but that it had to make such changes in governance through the corporation and not directly as a legislature: “It cannot remove the trustees, or overseers, though it may abridge, as well as enlarge, their powers.” And the legislature “must leave its [the corporation's] vitality and property, and enable it still to act as a college.”Footnote 115 Moreover, in the peculiar circumstances here, Story argued that Massachusetts had not given such powers to Maine when Massachusetts and Maine split in 1820. Maine, then, had no such powers with regard to Bowdoin College.Footnote 116
Whereas Story found this case to be identical to Dartmouth College—even though Massachusetts was held to be the founder—Stephen Longfellow, ostensibly representing the treasurer of Bowdoin but really making the case for the state of Maine, argued that this case was distinct. Longfellow was a former trustee and overseer of Bowdoin and his son, the poet Henry Wadsworth Longfellow, had been a student there. Longfellow argued that, under the terms of Bowdoin's charter, it was a public corporation that was subject, as Section 16 of the charter made clear, to alteration by the legislature. He then insisted that Massachusetts, as founder, had “engaged to ratify whatever arrangements should be made between the corporation and the new state.” The trustees of Bowdoin had themselves agreed to these terms, which allowed the trustees to secure funds from the state of Maine. Accordingly, Bowdoin was founded as a public institution subject to state control—and the state in control was now Maine.Footnote 117
Story's attempt to designate Bowdoin a “private” eleemosynary corporation neglected the pervasive public dimensions of the institution—both in its founding and its continued support. Indeed, even more than the court's opinion in Dartmouth College, Story's opinion in the Bowdoin case “erases” the public dimensions of the college in order to render Bowdoin a “private corporation.” Jeffersonians (and, in fact, many Federalists early on), in contrast, recognized the blended nature of these institutions—they were civic institutions that were also deeply sectarian and often held a monopoly on higher education as they were forged in a period when the civic and sectarian were intermingled. These institutions were caught between what Orren and Skowronek call “multiple orders” with regard to “church” and “state.”Footnote 118 For figures such as Plumer and Jefferson, the new constitutionalism rendered the intimate connection between the state and the sectarian college deeply problematic. Constitutional development, accordingly, required changes in the institutional relationship between sectarian colleges and the state.Footnote 119 These political figures were thus engaged in a constitutional struggle to reconstruct institutions that clashed—or “intercurred” in the idiom of APD—with the new political order.Footnote 120
Against this conflicted historical backdrop, Story's opinion in both the Allen and Dartmouth cases denied any real conflict. In his decisions, Story rewrote immediate history so that the public and civic aspects of these institutions was dissolved; he ignored the constitutional disharmony between a secular state and a sectarian state college in order to cast the colleges as uncomplicated “private” corporations. Story's opinions in these cases are aptly captured by Kersch's concept of a “constitutional erasure”—a narrative that glosses over the conflicted and antagonistic struggle by “erasing” the constitutional conflict at issue.Footnote 121 Thus, the fact that these institutions were very plausibly publically founded and supported was “erased” as they were recreated as “private corporations” to coincide with a political order that rendered their public and sectarian nature problematic. In accepting Story's rendering, and the conventional wisdom regarding Dartmouth College, we risk neglecting this important moment of political development. Forging the distinction between public and private educational institutions was a disjointed and conflicted political development, not a simple given, even if it was also an essential part of building the new constitutional order.
CONCLUSION
Dartmouth College may have had some claim to be a “private” institution, though the Supreme Court's opinion could easily have gone the other way. In the cases of Harvard, Yale, William & Mary, and Bowdoin, it is much more difficult to label these institutions “private” in the years after the revolution. To do so engages in a constitutional erasure that neglects the conflicted process of recreating these institutions as private colleges. The conflict itself grew from the disharmony between the creedal commitments of the new constitutionalism and the preexisting church–state colleges. Recasting these institutions as private corporations in some ways acquiesced to features of the older political order—that is, public support and taxes for preferred sectarian institutions. Against such acquiescence was the insistence that educational institutions would need to be reconstituted to complement the new American constitutional experiment, which necessarily separated church from state and, therefore, should separate publically supported colleges from church as well.
This was an uneven development, as features of the older order persisted against the failures of the new order. This was particularly true in New England, where a combination of Federalist politics and religious establishment after Jefferson's election turned some Federalists against their prior commitment to the revolutionary promise of educational institutions. New England continued to support the church–state college with public funds well into the nineteenth century even while embracing a conceptual distinction that laid the foundations for these colleges to cast themselves as private institutions. Yet, if Jeffersonians failed in their initial constitutional efforts to reshape these educational institutions as public institutions, theirs might be a “successful failure.”Footnote 122 The concepts they put forward framed how we would come to think about educational institutions and the relationship between state, church, and college. Marshall's opinion, recall, embraced these conceptual categories even as it placed Dartmouth on the “private” side of the divide. As the historian Fredrick Rudolph writes, “the Dartmouth College decision put on the way toward clarification the distinction between private and public institutions, a distinction that had not been made nor required a half century before.”Footnote 123
The struggle over educational institutions created in a previous political order points to the importance of ideas and thought to political development—both as phenomena to explain and as scholarly literature. The church–state college at the heart of this institutional struggle was embedded in an inherited political order where political actors accepted a mix of church and state as a central element of the polity. Such educational institutions came to be understood as problematic precisely because they were rooted in past ideas about the polity that were challenged by the creation of a new political order with a profoundly different understanding of church and state. Ideas about the origins and nature of political authority framed how these political actors understood educational institutions: The conceptual separation of “political” authority from “theological” authority and the subsequent effort to constitute institutions that could be embedded within this new conceptual framework drove institutional change and development with regard to educational institutions. Ideas about the proper relationship between church and state were drawn on to delegitimize existing educational institutions “by contesting the ideas that underlie them.” Yet the new ideas about church and state, including conceptualizing a distinction between “public” and “private,” also provided a “blueprint” for the reconstitution of inherited institutions and the creation of new institutions.Footnote 124
Scholars of American political development (APD) should be particularly interested in exploring the constitutive power of ideas as agents of change against a key insight of APD scholarship: The creation of political authority and order is always done against the backdrop of a prior political order, which necessarily includes the understandings and ideas that underlie that order. Institutions are embedded in ideas.Footnote 125 Ideas, as Rogers Smith argues, “give institutional orders much of their character, coherence, and significance.”Footnote 126 In this way, altering ideas may be the necessary precursor to bringing about “durable shifts in governing authority.” This positions political development as the construction (and reconstruction) of legitimate authority, which is very often a struggle over underlying ideas.Footnote 127 This may also suggest why political “erasures” are often an important feature of political development: Successful efforts to construct political authority often require delegitimizing past understandings, which can lead political actors to rewrite history to accord with their ideas. In studying such “sites” of political development, scholars must of course detail just how particular ideas come to be important in shaping political behavior and defining political rationality, as I have attempted to do here in detailing the struggle over educational institutions that is at the heart of this article.Footnote 128 If institutions remain an important part of this picture, scholarship within APD has much to gain by returning to the possible connections between political culture and political development.Footnote 129
This is particularly relevant to understanding constitutional development. Constitutions are more than institutional arrangements that establish governance: Constitutions seek to shape political culture and civil society. They are efforts to bring a polity to life by shaping the beliefs and understandings of the political actors who inhabit the constitutional world.Footnote 130 This includes the creation (or transformation) of institutions and culture. Certainly figures like Jefferson, Madison, Webster, and Backus thought that the Constitution they helped bring into being would entail a transformation of existing institutions—such as established churches and the church–state college—that were in tension with the Constitution's underlying ideas about the relationship between politics and religion. In this way, disharmony between a constitution's underlying commitments and actual historical circumstances may be a central engine of constitutional development. Creating and maintaining a constitution might be best understood as an inherently “developmental” undertaking. Bringing a constitution to life necessarily requires constructing certain understandings of political authority—the division between church and state, for example—that frame how actors within the constitutional universe understand political life. This may well require, over time, the transformation of institutions and beliefs as a central feature of constitutional development. This stems from another central insight of APD: The polity is constructed across time. This is part of an ongoing and historically grounded effort. While ideas such as “public” and “private” take meaning from within the constitutional order, the constitutional order also seeks to sustain itself by imparting these categories of thought. The people may not have to accept an architectonic view framed by the Constitution, but enough citizens must act on constitutional understandings for the polity to take shape—understandings like religious liberty and the separation of theological from political authority. Yet the struggle to create and maintain constitutional authority, and institutions that reflect that authority, is an ongoing enterprise.
The Dartmouth College case grew out of such a developmental understanding of the Constitution, which required forging the distinction between public and private as part of a new vocabulary in an attempt to map it onto American thinking and practices with the advent of the new Constitution. The Supreme Court's opinion masked the creation of categories that were part of an important constitutional development. While these political actors failed to turn Dartmouth into a public institution, they were successful in framing categories of thought to reflect the imperatives of the new constitutional order. The result was that “public” institutions would not be forged through existing “private” institutions, such as William & Mary, but would be created anew, much like Jefferson's University of Virginia.Footnote 131 The very year Dartmouth College was decided, the board of the University of Virginia was commissioned and issued a report on the future curriculum of the university. As the report put it, “in conformity with the principles of our Constitution, which places all sects of religion on an equal footing,” there would be no professor of theology nor any religious commitments or support at the university. The University of Virginia, as a public institution, would be secular, detached from religious authority or influence. This constitutional development would, in time, become the constitutional norm.
